Research On The Identification Of Apparent Agency In Construction Project Affiliation

With the continuous and vigorous development of China’s construction industry,the rapid economic growth has also brought many legal disputes in the field of construction industry,especially the judicial identification of apparent agency.Most of the apparent agency disputes in construction projects are based on the abuse or ultra vires of the agent’s authority,which makes the principal involved in the disputes between the agent and the other party.In order to solve the contradictions and disputes among the agent,the opposite party and the principal,and maintain the interests of the opposite party or the principal,the guiding opinions of the Supreme People’s Court on several issues in the trial of civil and commercial contract disputes under the current situation,issued by the Supreme People’s court in 2009,stipulates some conditions for the determination of apparent agency behavior.To a certain extent,the article defines the conditions for the identification of apparent agency,but the interpretation of the article is relatively simple,which still can not meet the current complex and changeable trading situation in the construction industry,and there are many disputes in practice.It often happens that the decisions made by the lower courts are denied by the higher courts,which requires our judges not only to focus on the analysis of the terms of the contract,but also to make accurate judgments on the degree of contracting and the progress of performance of the contract,so as to ensure the interests of the parties,maintain the order of market transactions,and ensure China’s economy The economy and society are developing steadily.This paper selects three cases with problems in the identification of apparent agency in construction engineering disputes,combining with relevant theories and practices in judicial practice,and through the induction and analysis of the cases,makes a summary of the elements of apparent agency and the identification standards of the elements for reference.It focuses on the analysis and demonstration from thefollowing aspects:The first part is the introduction.This paper combs the research background and significance of apparent agency in the current construction debt disputes,summarizes the causes of the disputes,and uses scientific research methods to elaborate.The second part is to analyze the three cases selected in this paper,and find out the similarities and differences of the elements of apparent agency in the three cases.The author found the following problems.First,the nature of project manager’s agency behavior is often involved in such disputes.It is difficult for the court to grasp whether it belongs to post agency or apparent agency in judicial practice.The other is that the materials signed by the opposite party with the contract have been transported to the construction site and used in the project project project to request the court to determine that the agent has the right appearance is biased.Third,whether the counterpart must go through the procedure of examining the actor before signing the contract.The third part is the jurisprudential analysis of the dispute focus of the case.The authority given by construction enterprises to project managers to exercise their rights on behalf of them is the key point to distinguish post agency and apparent agency.If the behavior of the project manager excludes the post agency,the court can inspect the appearance of the rights generated by the behavior of the project manager and the reasonable trust of the relative person,and then judge whether it conforms to the apparent agency;the flow direction and use of the goods signed by the contract need to be specifically analyzed in combination with the case situation.In general,the performance of the subject matter after the contract is signed is not considered to be able to generate reasonable trust for the counterpart;in combination with many factors in the case,such as the familiarity of both parties,industry background,transaction history,etc.,the examination obligation for the counterpart is different in degree.The fourth part is the conclusion from the above analysis: in the trial of disputes,if the court starts from determining the identity of the agent implementer,it can quickly lock the position authority of the agent,compare the agent behavior and the agent authority,and provide the basis for the qualitative analysis of the agent behavior;the flow direction and use of goods signed by the contract can not independently prove the representation of the agent right;the opposite party should be opposite before signing the contract The examination shall be conducted on the basis of personnel,but the examination shall be appropriate.It provides a reference for the court to judge the standard of apparent agency in the construction debt dispute.